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from criminal prosecution or civil liability for facility, provider or surrogate E. Facility has to provide each patient their rights regarding advance directives and a copy of the facility's policies F. A provider or facility that objects to a patient's advance directive may transfer a patient to another provider or facility - provider/facility is not required to act against their moral or ethical beliefs G. Felony charges for either concealing or forging an advance directive H. Certain medical procedures (abortion, electroshock, psychosurgery) must be expressly approved by patient or by a court III. Health Care Surrogate (Sections 765.201-.205) A. Designation must be signed in the presence of two witnesses B. Document remains in effect until revoked C. Surrogate's authority kicks in if/when physician concludes (and enters conclusion in the medical record) that the patient does not have the capacity to make health care decisions D. If in doubt, the physician may have a second physician review the matter E. Surrogate may review medical records and make health care decisions F. If there is no indication of what the patient would have chosen, the surrogate may consider the patient’s best interest in deciding that treatments are to be withheld or withdrawn IV. Life-Prolonging Procedures (Sections 765.301-.309) A. A person may make a living will to direct the providing, withholding or withdrawal of life-prolonging procedures in the event of a terminal condition, an end-stage condition or a persistent vegetative state This article is presented for educational purposes only and should not be taken as a substitute for legal advice, which should be obtained from personal legal counsel. Nevertheless, the FMA hopes that the information provided here and in its other publications continues to assist physicians in answering many of their most common legal questions allowing them to treat patients, instead of addressing legal concerns. Last Update: October 2005 ERISA-INSURERS MAY BE HELD LIABLE FOR MISREPRESENTATION A frequent source of frustration to health care providers occurs when a provider receives approval for a service from an insurer, provides the service, but then receives notification from the insurer that the plan contract actually did not authorize such treatment. Under a longstanding law, the insurers were not held liable for such a misrepresentation, arguing that the Employee Retirement Income Security Act (ERISA) forbids oral modification of plan terms Nachwalter v. Christie, 805 F.2d 956, 959 (11th Cir. 1986). As a result, courts held that misstatements of plan terms uttered by representatives of an insurance carrier could not bind the insurance company to pay for such services. Fortunately, case law in the U.S. Court of Appeals 11th Circuit has chipped away at the insurer's "ERISA" defense. In Lordmann Enterprises, Inc. v. Ecquicor, Inc. 32 F.3d 1529 (11th Cir. 1994), the Court held that an insurer administering an ERISA plan may be held liable for "negligent misrepresentation". As a result of this decision, if a provider can prove that the insurance carrier was negligent when it provided its misrepresentation of the ERISA plan coverage of a service, the provider may hold the insurer liable for the resulting damages. Moreover, the court reaffirmed previous law which "recognized a cause of action for equitable estoppel when a plan administrator makes a representation that interprets, rather than modifies, an ambiguous term of the plan." These rulings may provide assistance to physicians who are faced with two common dilemmas. In the first, the provider receives authorization for services, as the insurer affirms that the patient is covered by the plan, only to be told at a later date that the patient's coverage had terminated prior to the authorization, and that no payment will be made for the services. As a result of the Lordmann decision, however, the insurance company may still be held liable if it can be shown that the representative should have known that the coverage had lapsed. In the second example, a provider receives authorization for a service which may or may not be covered by the plan. If the existence of coverage is ambiguous, then the provider should be able to rely upon the representation of the insurance company that it will pay for such a procedure.This decision does not, however, guarantee that a provider will be paid for all services authorized by the insurer. For instance, if the representative was not negligent in stating that the patient was insured (e.g. the policy has been canceled the day before the call was made without the representative being notified), the provider still will be unable to recover from the insurance company. In the latter example, a representation that an insurance company will pay for a service which clearly is excluded in the policy description will not be upheld. Nevertheless, the Lordmann decision should aid physicians in collecting fees from insurance companies which negligently misrepresent coverage or which interpret ambiguous terms in insurance plans.This article is presented for educational purposes only and should not be taken as a substitute for legal advice, which should be obtained from personal legal counsel. Nevertheless, the FMA hopes that the information provided here and in its other publications continues to assist physicians in answering many of their most common legal questions allowing them to treat patients, instead of addressing legal concerns. Last Update: February 2013 ESTABLISHING A PHYSICIAN FEE SCHEDULE Establishing and reviewing medical fees is important in ensuring that a medical practice is viable in a competitive marketplace. There are several sources that a physician can use as a benchmark to determine if his fees are reasonable and adequate. However, there are some very important guidelines to follow in structuring a fee schedule. A policy statement of antitrust enforcement from the Federal Trade Commission’s Bureau of Competition states that except in extraordinary circumstances, the Commission will not challenge participation by competing providers in surveys of prices for health care services or salaries, wages, or benefits of personnel, under certain conditions designed to ensure the data is not used to coordinate prices or costs. To satisfy these conditions, the survey must be managed by a legitimate and independent third-party (e.g., a purchaser, government agency, health care consultant, academic institution, or trade association); the information provided must be more than three months old; and at least five providers reporting data upon which each disseminated statistic is based, no individual provider’s data represents more than 25 percent on a weighted basis of that statistic, and any information disseminated is sufficiently aggregated such that it would not allow recipients to identify the prices charged or compensation paid by any particular provider.Therefore, a physician may use survey information in determining his/her fee schedule. However, a physician should not survey other physicians for fee information. An exception to this is when there are several physicians that belong to the same group, in this instance the members of the group would be able to discuss fees among themselves but not with outside entities. Below are several reference sources that may be used: * Physician’s Fee Guide or Annual Physicians Fee Reference (available at most medical school libraries or it can be ordered by calling 1-800-669-3337).* Health Care Financing Administration’s Resourced Based Relative Value Scale.* Ingenix’s, 2008 Relative Values for Physicians. Medicare beneficiaries that developed one or more patient safety incidents had a one-in-four chance of dying during the hospitalization during 2002-2004. This rate remains unchanged since the first study was released July 2003 Wide, highly significant gaps in individual patient safety incidents and overall performance exist between the top and the bottom performing states during 2002-2004. Minnesota, Wisconsin, Iowa, Michigan and Kansas ranked as the top states for hospital patient safety during the period studied. New Jersey, New York, Nevada, Tennessee and District of